G.P. Danby vs Syad Shah Tafazul Hussain

Sir Edward Maynerd Des Champs Chamier, Kt., C.J.—This is an application by some of the defendant in the suit for leave to appeal to His Majesty in Council against an order of this Court setting aside the decision of the Subordinate Judge that the trial of the suit was barred by the rule of res judicata and remanding the suit for re trial on the merits. The plaintiff in the present suit, Syed Tafazul Hussain, was a party defendant to a previous suit brought upon a mortgage. It appears that he was made a party to that suit because he set up a dead of gift in respect of the village. His case was that the mortgagor had no right to mortgage the village in question. In the opinion of the learned Judges who decided the appeal to this Court the question of the title of the plaintiff to the village in suit was not decided by the Court which tried the mortgage suit. It is contended that the order of remand passed by this Court is a final order within the meaning of section 109 of the Code of Civil Procedure. The question what is and what is not a final order within the meaning of this section or the corresponding section of the Code of Civil Procedure, 1882, has been considered in several eases. The first case to which I need refer is that of Saiyid Muzhar Hossein Vs. Mussamat Bodha Bibi and Another, . The case of the plaintiff there was that one Ibn Ali had by his Will given the property in suit to certain persons who had conveyed it to the plaintiff. Several defences were put forward. One was of a preliminary nature, namely, that there was a misjoinder, and that was overruled. The next defence went to the foundation of the plaintiff''s claim, being a denial that Ibn Ali made any valid gift to the persons through whom the plaintiff claimed. The Subordinate Judge took evidence and heard the case. He decided against the plaintiff on the question of Ibn Ali''s Will and that made it unnecessary for him to decide the other issues. The plaintiff appealed and the High Court decided that Ibn Ali had made a valid gift, and they remanded the case u/s 562 of the Code of Civil Procedure, 1862, to be disposed of on the other issues according to law. The defendant applied to the High Court for leave to appeal but leave was refused on the ground that the order was not final. On an application for special leave to appeal, their Lordships of the Privy Council held that leave ought to have been given. They pointed out that all the questions in the suit except that of the Will of Ibn Ali were of a subordinate character and with reference to a statement in the High Court''s order that it was the established practice of the Court to treat such orders of remand as not being final, their Lordships said: "Probably the practice referred to is quite correct. But then the remand contemplated by section 562 is one made in a case where the first Court has disposed of the suit on a preliminary point so as to exclude evidence of essential facts. That is not the present case. The only preliminary point was the misjoinder. To establish the Will of Ibn Ali was the first step in the plaintiff''s case and on her failing in that, her whole suit failed."

In the case of Habib-un-nissa v. Munawar-un-nissa 25 A 629; A.W.N. (1903) 159 the first Court had dismissed the plaintiff''s suit on the ground of limitation. On appeal the High Court held that the suit was within time and remanded the suit for retrial u/s 562 of the Code of Civil Procedure. After referring to the case of Saiyid Muzhar Hossein Vs. Mussamat Bodha Bibi and Another, , their Lordships refused to give leave to appeal, saying that the appellate order of the High Court reversing the decree of the Court of first instance on the question of limitation left the parties open to contest their rights and claims on every other point. What was said in that case appears to me to apply forcibly to the present case. The order of remand passed by this Court leaves it open to the parties to contest their rights and claims on every point in the case. The applicant has relied upon two cases. The first is that of Rahimbhoy Hahibbhoy v. Turner 15 B. 155; 18 I.A. 6; 15 Ind. Jur. 35; 5 Sar. P.C.J. 639; 8 Ind. Dec. (N.S.) 104, in which a Court had passed a decree directing the taking of accounts against the defendant. Their Lordships held that the defendant was entitled to appeal. They said: "It is true that the decree that was made does not declare in terms the liability of the defendant, but it directs accounts to be taken which he was contending ought not to be taken at all, and it must be held that the decree contains within itself an assertion that, if a balance is found against the defendant on those accounts, the defendant is bound to pay it. Therefore the form of the decree is exactly as if it affirmed the liability of the defendant to pay something on each of these claims if only the arithmetical result of the account should be worked out against him." That case is obviously distinguishable from the present case. The second case relied upon by the applicant is that of Ananda Gopal Gossain and Others Vs. Naffor Chandra Pal Chowdhdri and Others . In that case the plaintiffs in the suit had purchased a patni mahal sold for its own arrears with power to annul all encumbrances and they brought a suit apparently to establish their right to hold the property free of a dar-patni right set up by some of the defendants. The Subordinate Judge dismissed the suit, holding that the plaintiffs had failed to prove the service of notices in the manner required by section 167 of the Bengal Tenancy Act. On appeal the High Court held that the service of notices in the manner required by the Act had been proved and they remanded the cases for trial on the merits. The defendant applied for leave to appeal and the High Court allowed the application, saying that the cardinal point in the suit was whether the notices had been properly served. That case is also clearly distinguishable from the present case, for in that case the decision of the question of the service of the notices, practically speaking, put an end to the case. In the present case we have an ordinary order of remand which does not decide any of the questions in dispute between the parties except that the suit is not barred by the rule of res judicata. It appears to the that if we were to give leave to appeal in the present case, we should have to give leave to appeal in every case in which this Court reverses the decision of a Subordinate Judge on a preliminary point and remands the case for trial on the merits. I would dismiss this application with costs. Hearing fee three gold mohurs.

Sharfuddin, J.

I agree.